BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 143/2003 Filed on 04.04.2003

Dated : 31.03.2010

Complainant:

M.J. Bose, Edavilakathu Home, Panniyodu P.O, Kattakkada, Neyyattinkara.

Opposite parties :

1. Bajaj Auto Financiers represented by its Managing Director, Akurdi, Pune- 411 035, Maharashtra.

    

2. Branch Manager, Bajaj Auto Finance Ltd., (Trivandrum Branch), C/o Deedi Automobiles, Kaimanom Junction, Pappanamcode.

    

3. Scheme Manager, Bajaj Auto Finance Ltd, Trivandrum Branch, C/o Deedi Automobiles, Kaimanom Junction, Thiruvananthapuram.

(By adv. James Ninan)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 20.10.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.01.2010, the Forum on 31.03.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The 1^st opposite party is the Managing Director and 2^nd & 3^rd opposite parties are Branch Manager and Scheme Manager respectively of Bajaj Auto Financiers Ltd. The complainant for the purpose of purchasing a new Bajaj Chetak Scooter from Deedi Automobiles, Kaimanom, had availed a loan from the Bajaj Auto Finance Ltd, Trivandrum Branch on instalment basis with proposal number 13131. As per the terms of the agreement the complainant has to pay Rs. 8,599/- as initial payment and the remaining amount shall be paid in 28 instalments with an amount of Rs. 817/- per mensum. Accordingly cheques were issued by complainant in favour of opposite parties for the amount due to draw at Co-operative Society Bank Kandala branch where the complainant is holding account. That as per the terms of loan, the complainant has remitted entire loan and the matter was intimated to the complainant through phone by opposite parties to collect the entire documents which is in their possession. Accordingly as intimated by the opposite parties, the complainant has approached the 2^nd and 3^rd opposite parties to collect the documents. The 2^nd and 3^rd opposite parties handed over R.C Book, key, deposit certificate and a statement of account regarding payment on 01.02.2001. When enquired about the closing certificate, it was told by the 2^nd and 3^rd opposite parties that since the head office is at Pune and the closing certificate has to be issued from Pune, some more time is necessary to get the closing certificate. It is assured by the 2^nd and 3^rd opposite parties that they will inform the complainant on getting the closing certificate. Accordingly the complainant has left the scene. It may be noted that the complainant has withdrawn the remaining amount from his bank after 01.02.2001, that on 24.02.2001 the complainant received a post card from the opposite parties stating that one of the cheques bearing No.3179 was dishonoured and the amount is to be remitted before the opposite parties immediately. On receiving the post card, the complainant has approached the 2^nd and 3^rd opposite parties and remitted the amount due as per cheque on 01.03.2001. This happened due to the wilful negligence on the part of the 2^nd and 3^rd opposite parties. Though this happened due to the negligence on the part of opposite parties, the complainant was kind enough to remit the amount due as per cheque. But to the greater disappointment and dismay, the opposite parties are claiming penalty of Rs. 350/- from the complainant for the negligence of theirs. The opposite parties are very adamant and stubborn that only on payment of penalty they will issue the closing certificate to the complainant. The complainant is not bound to pay any penalty to the opposite parties for the wilful negligence and latches on their part. The dishonour of cheque happened after the issuance of completion statement. Dishonour of cheque did not happen due to the fault of the complainant. Though several attempts were made by the complainant to get back the closing certificate since he want to sell his vehicle for treatment of his mother for an amount of Rs. 21,000/- all such attempts end in futile. Whenever the complainant approached the 2^nd and 3^rd opposite parties to get back the “ closing certificate”, not only the opposite parties were reluctant to issue the closing certificate but also they have treated the complainant so cruelly and arrogantly even in the presence of other customers. At last on 15.03.2003 again the complainant approached the 2^nd and 3^rd opposite parties and request them to get back the closing certificate since the complainant wants to sell his vehicle. To his greater surprise the opposite parties are so reluctant not to give back the closing certificate and treated the complainant in a rudely manner in the presence of other customers which creates great mental agony. Complainant further alleges that there was a previous dispute between the complainant and opposite parties for claiming excess amount before this Forum as O.P. No. 42/99. In that O.P this Forum has directed the opposite parties to repay the excess amount to the complainant which was paid by him with cost. It is only with a view to wreak vengeance against the complainant for filing the above said case, the opposite parties adopted this type of cheap tactics. The complainant states that there is wilful latches and negligence on the part of opposite parties which amounts to deficiency in service.

Opposite parties filed version in this case. The main contention of the opposite parties is that it was a relationship of a creditor and debtor and not maintainable before this Forum. The opposite party further submitted that the complainant has executed the hire purchase finance agreement on 25.08.1998 and the period of the agreement expired on 10.01.2001 and the complaint was filed on 04.04.2003, ie; after two years. As such the complaint is bad as per law of limitation. Opposite parties stated that the punctual payment of each instalment is the essence of the contract and in case of default, the hirer is liable to pay penal charges as per the terms of agreement. The Cheque No. 3179 dated 10.01.2001 for Rs. 817/- issued by the complainant towards repayment of the aforesaid loan has been dishonoured by his bank due to insufficiency of funds. As such the complainant is liable to pay penal charges of Rs. 350/-. The hire purchase will be completed only when the entire amount as per the agreement is paid. An amount of Rs. 350/- is due from the complainant. Hence they prayed for the dismissal of the complaint.

Complainant and opposite parties in this case filed proof affidavits. The complainant has produced 3 documents and that documents were marked as Exts. P1 to P3. The documents produced by the opposite parties were marked as Exts. D1 to D3.

Points that would arise for consideration are:-

1. Whether the complaint is maintainable or not?

2. Whether there has been deficiency in service from the side of opposite parties?

3. Whether the complainant is entitled to get the reliefs?

Points (i) to (iii):- As per the terms of the loan the complainant has remitted entire loan and the matter was intimated to the complainant through phone by the opposite parties to collect the entire documents which are in their possession. The 2^nd and 3^rd opposite parties handed over R.C Book, key, deposit certificate and a statement of accounts regarding payment on 01.02.2001. Accordingly the complainant withdrew the remaining amount from his bank after 01.02.2001. But on 24.02.2001 the complainant received a post card from the opposite parties stating that one of the cheques bearing No. 3179 was dishonoured and the amount is to be remitted before the opposite parties immediately. On receiving the post card the complainant has approached the 2^nd and 3^rd opposite parties and remitted the amount due as per cheque on 01.03.2001. Opposite parties demanded Rs. 350/- from the complainant for penalty charge. As per the complainant the cheque was dishonoured due to the wilful negligence on the part of the opposite parties. Hence the complainant is not liable to pay the penalty charge. The dishonour of cheque happened after the issuance of completion statement. The complainant's repeated demands and requests of the issuance of closing certificate was denied by the opposite parties. For that reason complainant could not sell his vehicle to meet his financial crisis. To prove his contentions complainant has filed proof affidavit and produced 3 documents. The document marked as Ext. P1 is the customer statement as on 01.02.2001. As per this document first instalment started on 10.10.1998 and the date of last instalment is 10.01.2001. In this case opposite parties intimated the complainant to collect the entire documents from the custody of the opposite parties since the complainant remitted the entire loan amount and issued a statement of account regarding payment on 01.02.2001. Ext. P2 is the copy of post card sent by the opposite parties to the complainant intimating that the complainant has to pay one instalment amount within 24.02.2001. Ext. P3 is the receipt issued by the opposite parties to the complainant for the payment of Rs. 817/- on 01.03.2001. Ext. D1 is the copy of terms and conditions of loan. As per this document penal charge at the rate of Rs. 100/- per month for every default committed by the hirer in payment of monthly instalments can be levied. But in this case opposite parties informed the complainant that the entire loan amount was remitted by the complainant and therefore to collect the documents from their custody. Accordingly complainant approached the opposite party on 01.02.2001. And thereafter complainant withdrew the balance amount from his bank account. If the opposite parties presented the cheque in due date i.e, before 01.02.2001 there was sufficient amount in his account. Complainant has produced the copy of his pass book. The complainant had withdrawn the amount from the bank that he had the bonafide belief that the entire loan was closed. Ext. D2 is the copy of cheque which was dishonoured, the date of cheque is seen 10.01.2001. As per Ext. D3 the date of presentation of the cheque is 07.02.2001, the reason for the dishonour is seen 'full cover not received'. But if the opposite parties presented cheque in due time there was sufficient amount in the account of the complainant as per the pass book produced by the complainant. From the above mentioned discussions we find that there is no wilful default from the side of the complainant to dishonour one of his cheques. It was the opposite parties who assured the complainant that the complainant had remitted the entire loan amount and there upon they handed over the documents and key of the vehicle to the complainant. On that assurance the complainant has withdrawn the balance amount from his bank account on 01.02.2001. As per the terms and conditions of the loan payment details, i.e, Ext. P1 the last instalment payment date is 10.01.2001. The opposite parties presented the cheque only on 07.02.2001. Hence it is the negligence and deficient act of the opposite parties that the cheque was dishonoured. Hence the opposite parties have no right to demand penalty charges from the complainant. In this circumstance, the act of the opposite parties in not issuing the closing certificate to the complainant amounts to unfair trade practice and deficient service. The complainant suffered mental agony and financial loss due to the deficient and negligent act of the opposite parties. Hence the complaint is allowed.

In the result, the opposite parties are directed to issue closing certificate regarding vehicle No. KL-01 N 5236 to the complainant within one month from the date of receipt of the order. The opposite parties shall also pay Rs. 5,000/- as compensation and Rs. 1,500/- as costs to the complainant. Time for compliance one month from the date of receipt of the order. Thereafter 9% annual interest shall be paid to the entire amount.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of March 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 143/2003

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of the customer statement as on 01.02.2001.

P2 - Photocopy of the post card sent by the opposite parties to the

complainant

P3 - Photocopy of the receipt issued by the opposite party.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Photocopy of terms and conditions of loan.

D2 - Photocopy of the cheque.

D3 - Photocopy of the date of presentation of the cheque is 07.02.2001

PRESIDENT